Michael L. Spence v. Nci Information Systems, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1391
MICHAEL L. SPENCE,
Plaintiff - Appellant,
v.
NCI INFORMATION SYSTEMS, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District
Judge. (1:05-cv-03127-BEL)
Argued: December 10, 2010 Decided: March 15, 2011
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Motz and Judge Gregory joined.
ARGUED: Peter F. Axelrad, COUNCIL, BARADEL, KOSMERL & NOLAN, PA,
Annapolis, Maryland, for Appellant. Kevin B. McCoy, KRUCHKO &
FRIES, McLean, Virginia, for Appellee. ON BRIEF: John G.
Kruchko, KRUCHKO & FRIES, McLean, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
In Maryland, an employer is not liable for disclosing
information about a former employee’s job performance “unless it
is shown by clear and convincing evidence that the employer . .
. [a]cted with actual malice . . . or . . . intentionally or
recklessly disclosed false information.”* In this appeal,
Plaintiff Michael L. Spence alleges that his former supervisors
made defamatory statements to his prospective employer. Because
we conclude that Plaintiff failed to produce sufficient evidence
that his former supervisors spoke with actual malice or
intentionally or recklessly disclosed false information, we
affirm the district court’s judgment.
I.
NCI Information Systems, Inc. (“NCI”) hired Plaintiff as a
computer forensics specialist in March 2002. His primary job
function was to examine NCI’s clients’ computers to determine if
they were being used for improper purposes. When Plaintiff
commenced work at NCI, his direct supervisor was Nanette Okuda.
Okuda answered to Brad Sexton, who indirectly supervised
Plaintiff.
* Md. Code Ann., Cts. & Jud. Proc. § 5-423 (West 2010).

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Okuda reviewed Plaintiff’s performance in May 2002. The
review was generally favorable. Plaintiff received “fully-
qualified” ratings, with scores between five and seven on a ten-
point scale, in various categories of his job performance. In
the narrative portion of the performance review, Okuda wrote the
following commendations:
[Plaintiff] is very knowledgeable about computer
forensics. . . . [H]e is the most knowledgeable on
the use of the EnCase software being utilized for the
gathering and reporting of computer forensics
evidence. He is very precise in the execution of the
forensics examination. He is conscientious and hard-
working. . . . He is ready to assist coworkers . . .
. He has established a rapport with all the personnel
that work in the NNSA Cyber Forensics Center. . . .
He is conscientious about keeping me informed about
the day-to-day operations of the NNSA Cyber Forensics
Center. He has an eagerness to learn as much as
possible about the area of cyber forensics.
However, the remainder of the May 2002 performance review was
not so favorable. Okuda noted that
[Plaintiff] does not recognize that his actions and
words frequently have an adverse effect on NCI and the
NNSA Cyber Forensics Center. For example, referring
to himself as a member of the Nevada Cyber Crimes Task
Force (NCCTF). . . . I have repeatedly reminded
[Plaintiff] that our primary job is to support the
NNSA Enterprise first and foremost. . . .
Organization of the cases that he has worked and is
currently working does not seem to be a priority. . .
. His attention to detail other than forensics
examination is lacking, such as the requirements for
the monthly status reports, format of his personal
case summary report, and assigning a case number and
starting a folder for every case.

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The May 2002 performance review also contained a space for
employee comments. Plaintiff complained that his salary did not
reflect the industry standard for computer forensics
specialists, and he requested “a salary adjustment in the range
of $75,000-$85,000 per year.” Plaintiff also had multiple
conversations about a salary increase with Sexton and non-
management employees at NCI. Sexton eventually became
frustrated at having the same conversation and warned Plaintiff
that “[h]aving conversations with anybody else [other than
management] is not going to be productive.”
At some point, Plaintiff discovered that his salary was
lower than the salary paid to Holly Dale, the other computer
forensics specialist at NCI. Based on the pay disparity,
Plaintiff filed charges of discrimination and retaliation
against NCI in the Nevada Equal Rights Commission (“NERC”) on
July 16, 2002. The NERC transferred the case to the United
States Equal Employment Opportunity Commission, which ultimately
dismissed the charges and issued Plaintiff a right-to-sue
letter.
Meanwhile, NCI designed a Performance Improvement Plan
(“PIP”) for Plaintiff on September 3, 2002. Between the May
2002 performance review and the PIP, Okuda documented,
consistent with NCI policy, numerous incidents in which
Plaintiff was disrespectful and confrontational, disagreeable

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with female employees, or lacking necessary organizational
skills. The PIP accordingly targeted these areas for
improvement: 1) unprofessional behavior and interpersonal
skills; 2) written communication; and 3) managing deadlines.
The PIP established specific goals and objectives to improve
each unsatisfactory area of job performance.
Near the beginning of October 2002, NCI hired Mike Sanders,
who replaced Okuda as Plaintiff’s direct supervisor. Sanders
had previously served in the Air Force and spent fourteen years
as an investigator with the Air Force Office of Special
Investigations (“AFOSI”). According to his deposition
testimony, Sanders observed early on that Plaintiff “had
significant issues with female employees,” particularly Dale.
At the end of October 2002, Plaintiff attended a training
seminar along with Sanders and Dale. On the first day of the
seminar, Plaintiff made a remark about Dale, causing other
attendees to laugh. Sanders “immediately yanked [Plaintiff] out
of the class, took him outside the building near the air
conditioner . . . and chewed his ass right there on the spot.”
The next day, Dale and a few others were unable to participate
in the seminar because their computers were hacked and their
root passwords changed. On the third day, the same prank
occurred, but Dale was the sole victim. Suspecting Plaintiff,
Sanders asked the seminar administrator to investigate which

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computer was responsible for the hacking. The administrator
determined that Plaintiff was responsible, and Sanders
terminated Plaintiff’s employment a few days later.
Thereafter, in 2003, Plaintiff applied for a computer
forensics specialist position with the Air Force. The position
required an extensive background investigation by AFOSI that
consisted of a financial background check and interviews with
the prospective employee’s former supervisors and neighbors.
AFOSI therefore interviewed Okuda, Sexton, and Sanders about
Plaintiff’s performance at NCI.
On March 2, 2004, AFOSI issued a Report of Investigation
(“ROI”) recommending that Plaintiff’s application be denied.
The ROI contained summaries and paraphrased statements made by
Plaintiff’s former supervisors. The ROI related Sanders’s
interview as follows:
SANDERS would not recommend [Plaintiff] for any
position related to computer forensics. [Plaintiff]
lacked the ability to work with others and often
failed to meet the requirements set forth by
[Plaintiff’s] supervisors and customers. [Plaintiff]
was not a violent person, but was often rude to co-
workers and customers. SANDERS would not release
specific information regarding the termination because
he feared [Plaintiff] maintains a vindictive attitude,
which [Plaintiff] would use to pursue civil action
against his company.
The ROI attributed the following statement to Okuda:
[Plaintiff] was not well liked within the workplace.
[Plaintiff] was friendly with coworkers, but often
lacked some of the social skills needed to

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successfully complete the mission. [Plaintiff]
maintained a good relationship with male employees,
but possessed a disrespectful and somewhat
chauvinistic attitude toward female employees,
specifically his superiors. On one particular
incident, [Plaintiff] initiated a fistfight with a
male co-worker in the office. [Plaintiff] possesses a
temper and could possibly be vindictive. [Plaintiff]
had an eager attitude toward assigned tasks, but often
worked outside certain guidelines and policies.
During the seven months, [Plaintiff] was given a “get
well” plan due to his poor performance, which
[Plaintiff] routinely failed to meet the prescribed
requirements. OKUDA related she would not recommend
[Plaintiff] for a computer forensics position.
Finally, the ROI contained this recitation of Sexton’s
interview:
[Plaintiff] was completely unreliable, untrustworthy,
and frequently failed to meet deadlines set forth by
the management. SEXTON would not release specific
information regarding the termination because he
feared [Plaintiff] maintains a vindictive attitude,
which [Plaintiff] would use to pursue civil litigation
against his company. . . . SEXTON adamantly stated he
would not recommend [Plaintiff] for any position, and
[Plaintiff] is not welcome for a position with NCI in
the future.
The ROI also documented as “potentially disqualifying”
Plaintiff’s strained financial background and at least one
unfavorable interview by a neighbor.
Plaintiff sued NCI for defamation and false light invasion
of privacy based on the interview statements of Sanders, Okuda,
and Sexton. The district court granted summary judgment for
NCI, ruling that Plaintiff produced insufficient evidence of

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actual malice to overcome NCI’s conditional privilege under
Maryland law. Plaintiff appeals.
II.
We review the district court’s grant of summary judgment de
novo. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28
(4th Cir. 1987). Summary judgment is appropriate if the
“pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also
Fed. R. Civ. P. 56(c)(2). A genuine issue exists if “‘there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party. If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted.’” Felty, 818 F.2d at 1128 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
Under Maryland caselaw, to prove a claim of defamation, a
plaintiff must establish that: 1) the defendant made a
defamatory statement to a third person; 2) the statement was
false; 3) the defendant was legally at fault in making the
statement; and 4) the plaintiff suffered harm. Rosenberg v.
Helinski, 328 Md. 664, 675, 616 A.2d 866, 871 (1992). Maryland

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recognizes a claim for false light invasion of privacy if 1)
“‘the false light in which the other person was placed would be
highly offensive to a reasonable person,’” and 2) “‘the actor
had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which
the other would be placed.’” Ostrzenski v. Seigel, 177 F.3d
245, 252 (4th Cir. 1999) (quoting Bagwell v. Peninsula Reg’l
Med. Ctr., 106 Md. App. 470, 513-14, 665 A.2d 297, 318 (1995)).
Claims of defamation and false light against an employer
are subject to a conditional privilege in Maryland. Bagwell,
106 Md. App. at 513-14, 665 A.2d at 318-19. Maryland employers
may generally disclose information about a former employee’s job
performance to an inquiring prospective employer. Cts. & Jud.
Proc. § 5-423(a); Happy 40, Inc. v. Miller, 63 Md. App. 24, 35,
491 A.2d 1210, 1216 (1985) (“[W]here the defamatory publication
is . . . in response to an inquiry and not volunteered, the
defendant is afforded greater latitude in what he may say about
the plaintiff without incurring liability.”). To overcome this
conditional privilege, a plaintiff must prove by “clear and
convincing evidence that the employer” either “acted with actual
malice” or “intentionally or recklessly disclosed false
information.” Cts. & Jud. Proc. § 5-423(b).
Relying on favorable statements in his May 2002 performance
review, Plaintiff contends that his former supervisors’

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unfavorable statements in the ROI are circumstantial evidence
that the supervisors spoke with actual malice or an intent to
disclose false information. For example, Plaintiff argues that
because the May 2002 performance review lauded Plaintiff as
“conscientious and hard working,” a jury could reasonably infer
that Sexton spoke with actual malice when he called Plaintiff
“untrustworthy,” “vindictive,” and “completely unreliable” in
the AFOSI interview. Plaintiff makes the same argument as to
Sanders’s and Okuda’s interview statements.
On this record, however, a mere comparison of contrasting
statements in the May 2002 performance review and the ROI “is
not significantly probative” evidence of actual malice or
disregard for truth. Felty, 818 F.2d at 1128. The May 2002
performance review occurred just three months after Plaintiff
started at NCI, and it was not entirely favorable to Plaintiff.
Over the next five months, NCI documented a laundry list of
incidents and confrontations involving Plaintiff, prompting the
PIP and culminating in Plaintiff’s termination for misbehaving
at the training seminar. Thus, descriptions of Plaintiff in the
ROI as “untrustworthy,” “vindictive,” “completely unreliable,”
and “disrespectful and somewhat chauvinistic” are substantially
supported by documentation of Plaintiff’s job performance in the
record. In that light, a jury could not reasonably infer that
the supervisors spoke with actual malice or disregard for the

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truth merely by comparing statements in the ROI to statements in
the May 2002 performance review.
We acknowledge that Okuda’s statement that “[Plaintiff]
initiated a fistfight with a male co-worker in the office”
presents a closer question because it suggests that Plaintiff
was the aggressor in a fistfight at NCI, and the record does not
support that assertion. However, Okuda expounded in her
deposition that this statement was a response to the
interviewer’s question, and it was based on information she
received from Plaintiff himself. Significantly, Plaintiff does
not contend that Okuda’s statement was a fabrication or that he
never communicated such information to Okuda. Thus, even if
Okuda’s statement is factually inaccurate, Plaintiff did not
produce evidence that she made the statement with malice or
disregard for the truth. See Lowery v. Smithburg Emer. Med.
Serv., 173 Md. App. 662, 685, 920 A.2d 546, 559 (2007)
(“[M]alice is not established if there is evidence to show that
the publisher acted on a reasonable belief that the defamatory
material was substantially correct and there was no evidence to
impeach the [publisher’s] good faith . . . .”) (citation and
quotation marks omitted).
In sum, we agree that Plaintiff failed to produce
sufficient evidence for a reasonable jury to conclude that his
former supervisors spoke with actual malice or disregard for the

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truth. Therefore, the statements in the ROI are conditionally
privileged under Maryland law. Given this conclusion, we need
not decide whether NCI’s statements are entitled to an absolute
privilege.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED

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